Procurement Law Specialization: Osgoode Programme

Procurement Law Specialization: Osgoode Programme

Far too often we hear the views expressed that unless there is statutory reform we cannot have fair and accountable procurement or until such a time as legislation is passed, there is no such thing as procurement law. This is far from the truth, and in fact, is a dangerous misconception for regional professionals and organizations to be operating under in respect of the current state of Caribbean procurement jurisprudence.

Since our very first conference in 2008, the Caribbean Procurement Institute has been working to arm professionals with the knowledge of existing mandates and the impact of a variety regulatory constructs on the procurement function including anti-corruption, finance and audit, environmental laws, access laws, whistle-blower protection, conflicts of interests etc. In addition, the formidable cross-commonwealth case law on competitive bidding, the Privy Council’s confirmation of the Contract A/Process Contract and the urgency of the public interest argument for judicial intervention in public procurement in the dissenting judgement in the Trinidad and Tobago Appeal Court by Chief Justice Sharma (NH International v UDeCOTT 2005) can no longer be ignored.

Over the last two decades the field of procurement law has been growing from a virtually unrecognized field to a specialist knowledge base critical for lawyers and other professionals advising public sector clients or engaged in the public sector contracting function. Given increasing public scrutiny and regulatory oversight, understanding how to obtain best value for procurement spend within an accountable framework is becoming more of a challenge and a responsibility which professionals upon whom organisations rely for advice, can not afford to treat lightly.
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Challenging contracting decisions such as

  • how and when to abort a tender,
  • how to comply with access laws and common law disclosure obligations to bidders and the public, whilst balancing commercial confidentiality norms
  • how and when to reject a non-compliant bid,
  • what tender call format to use,
  • how to distinguish between mandatory and directory bid clauses,
  • how to benefit from specialized knowledge of incumbent suppliers,
  • how to establish fair weighting and other evaluating criteria
  • how to develop innovative infrastructure project financing models under budgetary constraints,
  • how to leverage buying power to promote fairer risk allocation,
  • how to handle unsolicited proposals,
  • how to conduct simultaneous and competitive negotiations,
  • when relying on rights reservation clauses is appropriate vs when courts will not allow parties to hide behind it
  • knowing when and how to use the law proactively to mitigate fallout from project disputes, scope creep, variations and integrity breaches,
  • alternative dispute resolution strategies

amongst a host of others, many times present thorny legal issues with no apparent right or wrong answer unless the legal and factual context is properly analysed.

Procurement law specialists are those who advise clients strategically based on a sophisticated appreciation of procurement risk depending on the nature of the regulatory environment (open, hybrid or restrictive; centralized vs decentralized), emergent preventative law techniques and an understanding of judge-made case law, disclosure and anti-corruption legislative frameworks, and international best practice.

In short, long gone are the days when procurement rules and regulations were only those emanating from international lending agencies and procurement specialists were those who were familiar with them.

The need for a more sophisticated appreciation of procurement law began to emerge after the rapid common law developments spawned by the trailblazing Supreme Court of Canada case of Ron Engineering (1981) recognizing for the first time in the Commonwealth the duty of public purchasers to treat bidders fairly under the viagra coupon cialis online canada online private law of contract.

Since then, Courts in Australia, New Zealand, the United Kingdom, and the Privy Council (Pratt Contractors v New Zealand Transit (2004)) have ruled consistently in favour of public purchaser duties in the procurement process.   It should be noted, as this common law remedy is based on private law principles of the law of contract private purchasers have been found seized of these new contractual obligations, thereby debunking the view that Contract A/Process Contract obligations never apply to private purchasers.

This judicial movement, coupled with the WTO GPA obligations, the UN Model Law on Procurement with its revisions up to 2011, burgeoning Access & Anti-Corruption laws, Donor Agencies, MLOs, EPAs and BITs imposing procurement conditions on states, has made both public and private sector contracting an increasingly complicated legal field requiring specialist knowledge and strategic professional buying advice and approaches.

In 2006 the Osgoode Hall Law School, York University, Toronto Canada, one of the world’s pre-eminent law schools was the first to develop a two day course on Procurement Law. Since 2006, the Osgoode course has kept pace with developments and in 2010 the first examinable Five Day Professional Development Certificate course in Procurement Law was delivered in Toronto.

Since 2008, the Caribbean Procurement Institute has been leading in the delivery of procurement law programmes in the region and in 2011 partnered with the Osgoode Hall Law School to develop a Commonwealth Caribbean Edition of this unique programme.

In October 2011 this course was adapted and delivered to regional professionals to reflect the broader Commonwealth Caribbean jurisprudential and cultural context emphasizing local case studies and included leading Canadian faculty and academics, lawyers and professionals from throughout the Caribbean.

Led by Paul Emanuelli and Margaret Rose, the Osgoode Five Day Certificate Programme in Procurement Law & Practice – Commonwealth Caribbean Edition synthesizes the case, statutory and soft law in this field from across the commonwealth and provides a roadmap to guide professionals through the minefield.

With the use of local case studies pulled right out of our daily headlines participants will learn strategies to avoid common pitfalls. Some of the case studies include:

  • The controversial Tobago House of Assembly Milsherv BOLT project, an examination of which will help participants learn best practice and risk reduction strategies for conceptualizing, identifying partners, negotiating, assessing feasibility and allocating risk in P3 structures.
  • The 91 Uff Recommendations which will assist participants in understanding public sector procurement governance including the role and responsibility of elected officials vis a vis wholly state owned companies and the role and responsibilities of directors of state companies.
  • NH International v UDeCOTT 2005 to help participants understand how and in what circumstances Caribbean judges are prepared to intervene in public sector contracting decisions.
  • The Brian Lara Tarouba Stadium Project – examination of tender call formats, roles of project managers, managing variations and scope creep.
  • Piarco Airport Development Project – examination of tender call formats, responsibilities of lead consultants.
  • and many more cases from Canada, UK and Europe.

Specific emphasis will be placed as well on the efficacy of existing statutory protection for public sector whistle-blowers existing in both Jamaica and Trinidad and Tobago.

Participants will also be provided with extensive reading materials including the 3rd Edition of the Paul Emanuelli’s Government Procurement text published by Lexis Nexis.

Additional benefits of attending include the opportunity to

  • Increase your earning capacity and professional mobility by becoming a member of an elite group of Procurement Law Specialists.
  • Become a member of the Caribbean Association of Procurement Professionals (CAPP) a non-profit, voluntary members association accredited by the International Federation of Purchasing & Supply Management (IFPSM) and working toward certifying and setting standards for procurement professionals in CARICOM Member States.

Over the next few weeks we will be sharing more details and breaking down individual topics to be covered at the Osgoode Course and the detailed agenda.  To view of copy of the brochure please CLICK HERE.

TO REGISTER for the Programme CLICK HERE.

Please note that there are only 40 places this time around and almost half of the spaces have already been reserved.This course is run in the Caribbean once every two years.

For more information on how you or employees of your organization can register to attend this training programme and prepare for the examination beforehand with an advanced reading list and resources, do contact Mrs. Suelea Waterman at svwaterman@caribbeanprocurementinstitute.com or +1(868) 624 4997.

By way of thank you for your taking the time to read this entire email, we are sharing with you a paper I wrote in 2008 on Developing Caribbean Procurement Law. To Download Click Here.

We look forward to participating in your professional development and your taking that next step toward procurement law specialization.